Equitable Distribution

In the beginning of a relationship you aren’t likely to put your name on the inside cover of all your books, or make a list of which dishes belong to who. As your relationship progresses, it is relationship leads to a walk down the aisle; it is a sure bet that your DVD collections will share shelf space. If your marriage ends in separation or divorce, what then do you do if you are unable to determine what property belonged to which person before the marriage?

When you file for divorce and have to figure out a plan for distribution of assets, keep in mind that in Florida the distribution is equitable. To make that distribution easier when trying to classify assets as either separate or marital, the following tips are useful:

Your great grandmother’s favorite bracelet, or your granddad’s collection of baseball cards hold sentimental value and are things you want to hold on to after a divorce. These types of property are things you consider your separate property, as opposed to the marital home or vehicles acquired during a marriage. So, when you divorce, an important question of property division becomes who gets what and can you keep what you believe to be your separate property?

In Florida, property is divided under a system called equitable distribution. What this means is that the Court divides property in an equitable way. This does not mean property is divided equally, it means the Judge decides what is fair. When deciding what is fair, the Court will consider each case on its own facts and look at:

Deciding who gets what when a couple divorces is an emotionally charged issue. How property is divided among the parties depends on where you live. Some states are considered community property states, which means all property the couple acquired while married is considered equally owned by each spouse. When a couple files for divorce in a community property state, the property is divided in a 50/50 split.

The opposite of community property is called equitable distribution. Florida is an equitable distribution state. This means when parties divorce, the marital property is divided equitably. This does not mean equally, it means the Court will consider what is most fair when making its property division order. Some of the things the Court will consider when deciding a fair distribution of property include:

Divorce cases are made up of many complex issues, can be volatile, and take a financial as well as emotional toll on the parties. For some couples, the decision to submit their case to mediation is the right choice. The Ferraro Law Group participates in litigation of divorce matters as well as mediation. Our goal is to reach a resolution in a way that is right for you, without advocating for one forum over the other.

After having made the difficult decision to dissolve a marriage, consider the possible benefits of mediation. These benefits include:

● Lower cost

● A generally shorter time from inception to conclusion

● An informal setting, which instantly calms nerves and lowers the chances for emotional responses

● Accountability and meaningful participation for decisions made about the issues that matter to you most

Most divorce practitioners are aware that dividing a pension or qualified retirement asset as part of the property division requires a few extra steps. Because retirement plans are governed by federal law (as opposed to state divorce law) a standard divorce judgment simply will not do the trick. Instead, the payee of these benefits must submit a Qualified Domestic Relations Order (QDRO), which is essentially a special type of court order which conforms to state and federal law as well as the terms of the Marital Settlement Agreement and the specific directives of the plan in question. Most divorce lawyers outsource this task to a QDRO attorney who specializes in the drafting of these types of orders.

However, problems arise when the pension that is referenced in the divorce agreement is provided by a government employer. This is because government plans (federal, state… Continue reading →

We frequently receive calls from divorce litigants who were supposed to receive a portion of their spouseâ€™s retirement as part of their property division. However, when these litigants send their final judgment to the plan they are told that retirement assets (401k plans, pensions, etc.) are governed by federal law and therefore a state-court divorce order is ineffective. You can imagine the consternation that this information causes, particularly since retirement plans are often the largest asset divided in divorce.

Thankfully, we are able to tell these litigants that all is not lost and that, with a relatively inexpensive legal tool we ensure that their money is safely transferred into their possession. This tool is called a Qualified Domestic Relations Order, or more commonly a QDRO.